WA solicitor-general says hard border ‘necessary’ as High Court justices question Clive Palmer’s challenge

Western Australia’s hard border closure has proven the most effective measure in keeping the population safe from COVID-19, the state’s solicitor-general declared.

Clive Palmer in Bundaberg.

Western Australia’s hard border closure, which has been in place for more than seven months, is necessary and has proven the most effective measure in keeping the population safe from COVID-19, the state’s solicitor-general declared.

Joshua Thomson SC, appearing before the full bench of the High Court on Tuesday after mining magnate Clive Palmer challenged the validity of the border, also conceded that removing the restriction presented a “greater risk” to the state because social distancing had been relaxed and there was a high level of “mixing” among West Australians.

The defence of WA’s border came as Mr Palmer’s counsel was forced to acknowledge the state government’s “closing the border” directions were put in place for the protection of health and not to restrict interstate travel.

Clive Palmer's plane at RAAF base Fairbairn in Canberra on Tuesday. Picture: NCA NewsWire

Peter Dunning QC, representing Mr Palmer, abandoned his argument that the border closure was unconstitutional because it was designed to prevent free movement between states and said instead the test should be whether the measure was “reasonably necessary”.

He said WA should have opened up to states including Queensland with a “low and acceptable” risk of bringing in COVID-19, in an oral submission that was frequently questioned by the High Court judges.

Mr Thomson and Mr Dunning drew extensively on findings by Federal Court judge Darryl Rangiah, who in August found the WA border was “effective to a substantial extent” in reducing the probability of COVID-19 ­entering the state.

Mr Thomson said the directions governing the border had changed depending on varying circumstances like the rate of corona­virus community transmission, despite the first significant easing of the border only being announced last Friday.

From November 14, Australians from South Australia, Tasmania, Queensland, the ACT and Northern Territory will be able to enter the state without quarantining, pending new outbreaks.

That reopening date gives WA about two weeks to assess community transmission now that all other states have opened up to NSW.

It would also mark one month since New Zealanders were allowed to travel to Sydney without going into hotel quarantine.

Mr Thomson said there was still a risk of COVID-19 being imported from states that had 28 days of no community transmission, considering people from NSW could “border-hop” into other eastern states.

While Queensland, where Mr Palmer lives, was deemed by Justice Rangiah to be in an uncertain category in August due to recent coronavirus cases Mr Dunning said it would now be classed as “low” risk.

Mr Dunning conceded Justice Rangiah accepted WA’s border had protected the population unlike any other measure – such as face mask wearing – but those other measures were “acceptable” when applying a “precautionary principle”.

Chief Justice Susan Kiefel asked Mr Dunning what approach the court should take in deciding at what point in time it was testing whether the border was valid, given the facts surrounding coronavirus cases and community transmission in various jurisdictions have changed substantially since August.

Mr Dunning said the court should consider the case with the same facts laid out by the Federal court “subject to any relevant changes”, which was that Queensland was now deemed a low risk state.

Mr Palmer’s spokesman insisted the mining magnate was in Canberra in Tuesday, where his plane was photographed, but he did not attend the first day of hearings.